EXHIBIT 10.1
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT effective as of the 28th day of April, 2004, by
and between FIND/SVP, INC., a New York corporation, having its principal
executive offices at 000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(hereinafter referred to as the "Company"), and Xxxx Xxxxxxxxx, an individual
residing at 000 Xxxxxxx Xxxxxx, Xxx Xxxxx, Xxxxxxxxxx 00000 (hereinafter
referred to as the "Employee").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Company provides global business advisory and other
services; and
WHEREAS, the Company and Employee have entered into a Letter Agreement
of employment outlining the proposed terms of employment (the "Letter Agreement
of Employment"); and
WHEREAS, the Company and the Employee desire to formalize their
relationship as hereinafter set forth;
NOW, THEREFORE, in consideration of the terms and conditions
hereinafter set forth, the parties hereto agree as follows:
1. EMPLOYMENT; POSITION; RESPONSIBILITIES.
1.1 The Company hereby employs and engages the Employee to
serve as the Chief Operating Officer of the Company. In addition thereto, as a
senior executive of the Company, Employee shall feel free to give the Company
his input on any and all corporate developments and issues. In connection
therewith, Employee shall be a member of the Company's Operating Management
Group (the "OMG") whose function is to propose initiatives and supplemental
strategies needed to move the Company to the next level of growth and to apply
the Company's overall policies and strategies. Employee shall report to the
Company's Chief Executive Officer.
1.2 The Employee hereby accepts said employment with the
Company on the terms and conditions herein set forth and agrees to devote his
full time, energy and skill during regular business hours exclusively to such
employment. The Employee may serve on civic or charitable boards or committees,
deliver lectures, fulfill speaking engagements, teach at educational
institutions, or manage personal investments; provided that such activities do
not individually or in the aggregate interfere with the performance of his
duties under this Agreement.
2. TERM OF EMPLOYMENT.
2.1 The term (the "Term") of employment hereunder shall
commence on May 17, 2004 ("Commencement Date") and shall continue until May 16,
2005 (the "Expiration Date"), provided that this Agreement shall be
automatically renewed on the Expiration Date for an additional one year period
(the "Renewal Term"), unless the Company notifies Employee (a "Renewal Notice")
in writing at least sixty (60) days prior to such Expiration Date that it does
not wish to renew this Agreement (a "Nonrenewal Event") and provided, however,
that Employee's employment shall terminate sooner upon the occurrence of any of
the following events:
(a) The death of the Employee;
(b) The incapacity of the Employee as defined
below;
(c) An act or omission to act on the part of the
Employee which would constitute cause, as
defined below, for the termination of
employment, and the giving of written notice
to the Employee by the Company that the
Company elects to terminate the employment
of the Employee;
(d) The Employee voluntarily leaves the employ
of the Company; or
(e) Resignation by the Employee for good reason
as defined below; or
(f) The Employee is terminated with or without
cause.
2.2 The term "incapacity" as that term is used in Section
2.1(b) above and Section 2.4(a) below shall be deemed to refer to and include
the absence of the Employee from his employment by reason of mental or physical
illness, disability or incapacity for a continuous period of 90 days or for a
period of 120 days in any six-month period, and the Company, at its option,
elects to treat such illness, disability or incapacity as permanent in nature.
2.3 The term "cause" as that term is used in Section 2.1(c)
above and Sections 2.4(a) and 3.6 below shall be defined as the occurrence of
one or more of the following events:
(a) the Employee's conviction or pleading no
contest in a court of law as to any crime
involving money or other property or of a
felony;
(b) the willful taking or attempted taking of
any action by the Employee which results in
damage to the Company, including any
appropriation (or attempted appropriation)
of (i) any of the Company's funds or
property or (ii) a material business
opportunity of the Company, including
attempting to secure or securing any
personal profit in connection with any
transaction entered into on behalf of the
Company; or
(c) the Employee's breach of any of the
provisions of Section 4 hereof; or
(d) the Employee's refusal or willful or
intentional failure to substantially
perform, or performance in a grossly
negligent manner of, his duties hereunder
(other than any such failure or refusal
resulting from his incapacity) or the
Employee's refusal or willful or intentional
failure to carry out the lawful directives
of the
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Company'sChief Executive Officer or his
carrying out of those objective in a grossly
negligent manner or the material default or
breach by Employee of any obligation,
representation, warranty, covenant or
agreement made by Employee herein (other
than Article 4 hereof); provided, however,
that the Company shall have given Employee
written notice of any such cause for
termination in accordance with Sections
2.1(c) and 7 hereof and Employee shall have
failed to cure such cause within 15 days
after the date of such notice. If the cause
for termination set forth in this subsection
2.3(d) is cured within the 15 day period, it
shall be deemed for all purposes that cause
for termination has not occurred (except
that if the same or a similar event to the
one resulting in notice pursuant to this
subsection 2.3(d) recurs after a cure, the
right to cure the second cause of
termination, after notice with respect to
the second event shall have been given,
shall expire 24 hours after the time the
notice is given).
2.4 The term "good reason" as that term is used in Section
2.1(e) above and Section 3.6 below shall be defined as the following:
(a) the material diminution of Employee's
position or responsibilities and status with
the Company;
(b) a relocation of the Company's principal
offices and place of Employee's employment
outside New York City, Westchester County or
Fairfield County;
(c) the Company's material breach of any of its
obligations under this Agreement; provided
however, that the Employee shall have given
Company written notice of any such cause for
Good Reasons, and Company shall have failed
to cure such cause (if curable) within 30
days after the date of such notice. If the
cause for Good Reason is cured within the 30
day period, it shall be deemed for all
purposes that such cause for Good Reason has
not occurred.
3. COMPENSATION: RELATED MATTERS.
3.1 (a) Employee shall receive a salary for his services
hereunder at the rate of $230,000 per annum, payable in accordance with the
Company's normal payroll procedure for executive employees.
(b) In addition to the Employee's salary, the Employee
will be eligible to receive incentive compensation as
follows:
i. Bonus target of $40,000 for calendar year
2004 upon the achievement of 2004 corporate
EBITDA targets.
ii. An automobile allowance of $500.00 per
month.
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3.2 The Company shall reimburse the Employee for all
reasonable expenses incurred by him in connection with the business of the
Company, provided Employee shall submit proper supporting documentation for such
expenses. Any such expense or related group of expenses exceeding $7,500 in the
aggregate shall be pre-approved in writing by the CFO or CEO of the Company
prior to the incurrence of such expense.
3.3 Employee shall be eligible, to the extent he qualifies,
for participation in any health or other group insurance plan of the Company and
shall also be entitled to participate in any employee benefit programs of the
Company for its key employees or for its employees generally.
3.4 Employee shall be entitled to four (4) weeks of paid
vacation annually (subject to prorating for partial years), to be taken at such
times as are consistent with the needs of the Company and the convenience of the
Employee, plus such other holidays, personal days or other days as may be
determined in accordance with the Company's policies as in effect from time to
time.
3.5 (a) In the event the Employee's employment by the Company
is terminated for "cause" pursuant to Section 2.1(c) hereof, or by virtue of
Section 2.1(d) hereof because the Employee voluntarily leaves the employ of the
Company, the Employee shall be entitled to (i) the compensation provided for by
Section 3.1(a) hereof, and (ii) compensation accrued pursuant to Section 3.1(b)
hereof, in each case only up until the date of termination of his employment.
(b) In the event the Employee's employment by the Company is
terminated by the Company without cause, by the Employee for Good Reason, or as
a result of a Nonrenewal Event or a Second Year Nonrenewal Event, the Employee
(or his estate in the event such termination is due to the death of the Employee
or the Employee dies subsequent to such termination) shall be entitled to
receive (i) the compensation provided for in Section 3.1(a) hereof as may be
adjusted upward and without taking into effect any Cash Compensation Reductions
(as defined below) for the Severance Period (as defined herein) and (ii) any
monies due and owing to the Employee pursuant to Section 3.1(b), provided that
any benefit under Section 3.1(b)(ii) hereof shall only be provided for the
Severance Period (collectively, the "Severance Benefit"). Subsequent to the
Employee's separation from employment, should the Company discover that the
Employee had violated Section 2.1(c) or Section 4 hereof, the Company shall not
pay, and Employee shall not be entitled to receive, any portion of the Severance
Benefit. The "Severance Period" shall be a period of six (6) months from the
date of termination; provided, that for each full month that Employee is
employed hereunder after the commencement of the Term, the Severance Period
shall be increased by one additional month up to an additional six months
(equaling up to an aggregate maximum Severance Period of twelve months).
For purposes of this Agreement, a "Second Year Nonrenewal
Event" shall occur in the event that the Employee ceases to continue employment
with the Company after the expiration of the Renewal Term because the Company
does not offer to continue the Employee's employment hereunder for a third year
on terms that are substantially the same as the terms contained in this
Agreement, provided, however, that the cash compensation offered by the Company
may be reduced (a "Cash Compensation Reduction") pro rata (but in no event less
than 90% of the cash
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compensation provided hereunder) to the same extent that a majority of the
members of the Company's OMG shall also agree to accept a cash compensation
reduction.
3.6 GRANT OF STOCK OPTIONS AND RESTRICTED STOCK. (a) Effective
as of the "Commencement Date", the Company will grant to the Employee a ten-year
Incentive Stock Option (the "Option") to purchase fifty thousand (50,000) shares
of the Company's common stock, ("Common Stock") pursuant to the terms of a Stock
Option Agreement attached hereto as EXHIBIT A.
(b) Effective as of the "Commencement Date", the Company
will grant to the Employee 100,000 shares of restricted Common Stock at an
exercise price of $.01 per share (the "Restricted Stock") pursuant to the terms
of a Restricted Stock Award Agreement attached hereto as EXHIBIT B.
(c) Promptly upon commencement of a second year term
hereunder, the Employee shall be awarded 25,000 shares of restricted Common
Stock having terms and conditions substantially similar to the Restricted Stock
described in (b) immediately above, other than the vesting provisions which
shall be determined by the Company.
3.7 RELOCATION EXPENSES. The Company shall pay directly to, or
on behalf of, Employee reasonable expenses in connection with the physical move
of Employee and his immediate family (the "Direct Relocation Payment Amount")
and shall also reimburse Employee for other normal and customary relocation
expenses up to a maximum amount of $75,000 less the Direct Relocation Payment
Amount (the "Relocation Reimbursement Amount", and together with the Direct
Relocation Payment Amount, the "Relocation Payments"); provided, that Employee
shall use all reasonable efforts to submit expense documentation to the Chief
Financial Officer of the Company for approval prior to incurrence. However, if
employee resigns without good reason or is terminated for cause prior to the end
of the Term, an amount of the Relocation Payments shall be repaid to the Company
by Employee in an amount equal to the product of the total Relocation Payments
paid multiplied by a fraction the numerator of which is the number of full and
partial months remaining until the one year anniversary date of this Agreement
on the earlier to occur of the date of resignation or termination and the
denominator of which is 12.
4. RESTRICTIVE COVENANTS.
For purposes of this Section 4, the definition "Company" shall
include each of the Company's subsidiaries and affiliates.
4.1 ACKNOWLEDGEMENTS. Employee acknowledges that the Company
is in the information services business and that the Employee, as an Executive
Officer of the Company, will be familiar in detail with the activities of the
Company and will participate in formulating the activities; that he will
continue to be familiar in detail with the activities and future plans of the
Company as they continue to develop during his employment; and that his position
will give him a thorough knowledge of the Company's customers, suppliers and
servicing and marketing operations and will place him in close and continuous
contact with the Company's customers and suppliers. Employee further
acknowledges that (a) if he were to compete with the Company by organizing,
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directing, advising, assisting or becoming an employee of any competing business
entity, as defined below, he could do great harm to the Company and would
materially diminish or destroy the value to the Company of its customer and
supplier relationships and servicing and marketing arrangements; (b) the
services to be performed by Employee under this Agreement are for a special,
unique, unusual, extraordinary and intellectual character; (c) the business of
the Company are national and international in scope and their products are
marketed throughout the United States and in other countries, territories and
possessions; (d) the Company competes with other businesses that are or could be
located in any part of the United States and in other countries, territories and
possessions; and (e) the provisions of this Section 4 are reasonable and
necessary to protect the business of the Company and will not restrict Employee
from earning a livelihood.
4.2 CONFIDENTIALITY. Both during the Term of this Agreement
and at all times thereafter, the Employee (i) shall treat as confidential all
Confidential Information, (ii) without the prior written consent of the CEO of
the Company, shall not use for any personal purposes, publish, reveal, divulge,
transfer or otherwise disclose, or directly or indirectly make available to any
party any of such Confidential Information except to such parties that either
(a) are employed by, or (b) have signed a confidentiality agreement with respect
to such Confidential Information and such parties have a need for such
information for purposes that are in the best interest of the Company, and (iii)
shall not use Confidential Information in any way that is detrimental to the
interests of the Company. The term "Confidential Information" shall mean any and
all nonpublic knowledge relating to the business and affairs of the Company, and
its trade secrets, business methodologies, financial information, customer and
personnel information and data, creditors, shareholders, directors, contractors,
agents, consultants, employees, terms of contracts, and other confidential or
nonpublic information pertaining to the business practices, properties,
services, products, ideas, know-how, improvements and developments of the
Company conceived, developed or devised by or for the Company that is or is
intended to be of a confidential nature, including, but not limited to, any and
all knowledge relating to products, research, development, inventions,
purchasing, accounting, finances, costs, profit margins, marketing,
merchandising, selling, customer lists, customer requirements and personnel,
pricing, pricing methods, computer programs and software, databases and data
processing. The term "Confidential Information" shall include the aforementioned
items notwithstanding the fact that such information may or may not be
explicitly marked as confidential and notwithstanding the fact that such
information could be independently developed by third parties, provided that
nothing contained in this section shall be construed to prevent Employee from
using any general technical know-how and information that is in the public
domain or of a nature known generally throughout the industry or known to the
Employee prior to the date hereof and nothing contained in this section shall be
construed as imposing restraints upon the Employee's use of any information
which is or has been rightfully obtained by the Employee from persons other than
the Company where such persons are under no obligation of trust or confidence to
the Company.
4.3 COMPETITIVE RESTRICTIONS. During the Term of this
Agreement and during the Restricted Period (the Term of employment and the
Restricted Period being collectively referred to as the "Covenant Period";
provided, that the Covenant Period shall be extended by the amount of time of
any violation by the Employee of any covenant of this Section 4 to which the
Covenant Period applies), unless otherwise consented to by the Company in
writing, Employee shall not engage as founder, principal, partner, executive
officer, owner, employee or consultant
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of any competing business entity, as defined below; provided, that the Employee
shall be permitted during the Covenant Period to own less than a 5% interest as
a stockholder (and in no other capacity) in a company which is listed on any
national stock exchange even though it may be in competition with the Company.
As used in this Agreement, the term "competing business entity" shall mean any
corporation, firm, partnership, association, trust, group, joint venture,
individual proprietorship or other party engaged in a business to business rapid
response information-on-demand business and such other businesses that the
Company is actively engaged during the Term of this Agreement.
For purposes of this Agreement, the term Restricted Period
shall be a period of six (6) months from the date of termination; provided, that
for each full month that Employee is employed by the Company after the
commencement of the Term, the Restricted Period shall be increased by one
additional month up to an additional six months (equaling up to an aggregate
maximum Period of twelve months).
4.4 DISCLOSURE. Employee shall, during the Term of his
employment, promptly reveal to the Company all matters coming to Employee's
attention pertaining to the business or interests of the Company.
4.5 NON SOLICITATION. Unless otherwise consented to by the
Company in writing, Employee shall not during the Covenant Period, hire or
solicit for hiring, on his own behalf or on behalf of any business entity, any
employee of the Company, or any person who was an employee of the Company in the
twelve (12) month period prior to such hiring or solicitation for hiring.
4.6 NON-INTERFERENCE; NON-DISPARAGEMENT. (a) At any time
during the Covenant Period, the Employee shall not interfere with any of the
Company's relationships with any party, including any party who, at any time
during the Term, was an employee, contractor, supplier or customer of the
Company. At any time during or after the Term, the Employee shall not make
public statements which may negatively impact the Company or any of their
respective shareholders, directors, officers, employees or agents with respect
to the customers, suppliers, products, personnel or business of the Company. For
purposes of this Section 4.6, "interfere" shall mean intentional or grossly
negligent acts or conduct that is reasonably likely to hamper, hinder or disturb
the relationships between the Company and any applicable party.
(b) At any time during or after the Term, the Company shall
not make public statements which may negatively impact the Employee.
Notwithstanding the foregoing, nothing in this Agreement shall preclude the
Company from making any public announcement deemed necessary, in the reasonable
opinion of Company's counsel, in connection with any federal or state securities
laws or stock exchange rules.
4.7 INVENTIONS. Employee will promptly disclose to the Company
all designs, processes, inventions, improvements, discoveries and other
information related to the business of the Company (collectively "developments")
conceived, developed or acquired by him alone or with others during the Term in
connection with his employment with the Company. All such developments shall be
the sole and exclusive property of the Company, and upon request the Employee
shall deliver to the Company all drawings, models and other data and records
relating to
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such developments. In the event any such developments shall be deemed by the
Company to be patentable or copyrightable, the Employee shall, while employed,
at the expense of the Company, assist the Company in obtaining any patents or
copyrights thereon and execute all documents and do all other things necessary
or proper to obtain letters patent and copyrights and to vest the Company with
full title thereto.
4.8 USE AND RETURN OF MATERIALS. Employee shall not, during
his Term of employment or upon termination thereof, remove from the offices of
the Company, any studies, samples, reports, plans, contracts, publications,
customer lists or other similar items nor copies or facsimiles thereof, except
as the same may relate to the performance of Employee's duties hereunder, or as
otherwise authorized by the Company. At the termination of Employee's employment
with the Company the Employee shall return to the CEO of the Company the
originals and all copies of correspondence, memoranda, papers, files, records,
and other materials that may at any time have come into the possession of
Employee and relate to the business and affairs of the Company.
4.9 COSTS OF ENFORCEMENT. In the event that the Company brings
an action or arbitration proceeding to enforce its rights under this Section 4,
the party that substantially prevails in such arbitration proceeding or action
shall be entitled to recover from the party or parties against whom the order or
award is given or the award or judgment is entered all costs and expenses,
including reasonable attorneys' fees, incurred by the prevailing party or
parties with respect to such action or proceeding, such award of costs and
expenses to be determined by the arbitrator(s) or the Court, as the case may be.
5. SEVERABILITY OF COVENANTS.
The provisions of Section 4 of this Agreement contain a number
of separate and divisible covenants, all of which are included respectively in
said Section for the purpose of brevity only, and each of which shall be
construed as a separate covenant and shall be separately enforceable, and if any
court of competent jurisdiction shall determine that any part of said Section,
or any part of any sentence or paragraph thereof, or any such separate covenant
therein contained, is unduly restrictive or void, the remaining part or parts,
or the other separate covenants, shall be considered valid and enforceable,
notwithstanding the unenforceability of such part or separate covenant.
6. REMEDIES.
Employee acknowledges that it will be impossible to measure in
money the damage to the Company of a breach of any of the provisions of Section
4; that any such breach will cause irreparable injury to the Company and that
the Company, in addition to any other rights and remedies existing at law or
equity or by statute, shall be entitled to an injunction or restraining order
restraining Employee from doing or continuing to do any such acts and any other
violations or threatened violations of Section 4, and Employee hereby consents
to the issuance of any such injunction or restraining order without bond or
security.
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7. NOTICES.
All notices required or permitted to be given by any party
hereunder shall be in writing and delivered in person or mailed by registered or
certified mail, return receipt requested, to the other parties addressed as
follows:
(a) If to the Employee to 000 Xxxxxxx Xxxxxx, Xxx Xxxxx,
Xxxxxxxxxx 00000 with a copy to Xxxxxx Xxxxxxxx & Xxxx, P.C., 00 Xxxxxxxx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx X. Xxxx, Esq.;
(b) If to the Company to 000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Chief Executive Officer, with a copy to Xxxx Xxxxxxx,
0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx X.
Xxxxxxxx, Esq.; or to such other addresses as the parties may direct by notice
given pursuant hereto. Any notice mailed as provided above shall be deemed
completed on the date of receipt.
8. ENTIRE AGREEMENT.
The provisions hereof constitute the entire agreement among
the parties with respect to the subject matter hereof and supersede, replace and
terminate all existing oral or written agreements concerning such subject
matter. No modification, supplement or discharge hereof shall be effective
unless in writing and executed by or on behalf of the parties hereto.
9. WAIVER.
No waiver by any party of any condition, term or provision of
this Agreement shall be deemed to be a waiver of a preceding or succeeding
breach of the same or any other condition, term or provision hereof.
10. ASSIGNABILITY.
This Agreement, and its rights and obligations may not be
assigned by Employee. This Agreement shall be binding upon the Company and its
successors and assigns.
11. GOVERNING LAW.
This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
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12. ARBITRATION.
Except in the event of the need for immediate equitable relief
from a court of competent jurisdiction to prevent irreparable harm pending
arbitration relief, and except for enforcement of a party's remedies to the
extent such enforcement must be pursuant to court authorization or order under
applicable law, any dispute or controversy arising among or between the parties
hereto regarding any of the terms of this Agreement or the breach hereof, the
determination of which is not otherwise provided for herein, on the written
demand of any of the parties hereto shall be submitted to and determined by
arbitration held in the City of New York in accordance with the employment rules
then obtaining of the American Arbitration Association. Any award or decision
made by the arbitrators shall be conclusive in the absence of fraud, and
judgment upon said award or decision may be entered in any court having
jurisdiction thereof. The prevailing party in any arbitration or proceeding
brought pursuant to this Section 12 shall be entitled to recover from the party
or parties against whom such final determination or order is given all
reasonable costs and expenses, including reasonable attorneys' fees and the
arbitrator's fees, incurred by the prevailing party or parties with respect to
such arbitration or court proceeding, such award of costs and expenses to be
determined by such arbitrator or court.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date and year first above written.
FIND/SVP, INC.
By:
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XXXXX XXXXX Xxxx Xxxxxxxxx
Chief Executive Officer
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